Spanish law incriminates both public and private bribery and corruption conducts carried out nationally and internationally by natural and legal persons:

• Bribery and corruption related to public sector scopes:
• • Affecting to national public administration:
    • Improper influence over public officials and authorities (by other public officials or authorities – Article 428 of the Spanish Criminal Code, CC– or by a non-public person – Article 429 CC);
    • Bribery of public officials and authorities to engage in improper conducts (both the public official who promotes or receives it – Article 419 CC – and the private individual who promotes or pays it – Article 424 CC-), to gratify proper conducts (articles 420 and 421 CC), due to his public position (article 422);
    • Misappropriation of public funds, including the misappropriation of public assets (Article 432 CC), their use for private purposes (Article 432 bis CC) or for a purpose different from the one intended (Article 433 CC), with a new regulation which entered into force in January 2023;
    • Fraud in public procurement (Article 436 CC);
    • Actions not falling under the previous provisions, but involving unfair decisions in public functions incompatible with any admissible interpretation of the law (prison linked when considering Judges resolutions -Article 446 CC-; no prison linked but disqualification for public responsibilities in any other case -Article 404 CC-).
  • Affecting to foreign public administrations:
    • Bribery of foreign officials and authorities in economic operations -public procurement- with disruption of competition (Article 286 ter CC);
    • As in the national sphere, against acts of bribery (Article 427 CC), improper influence (Article 431 CC), and misappropriation of public funds (Article 435 CC) involving officials of the European Union of any European Union country or any other foreign country (Article 427 CC).

• Bribery and corruption related to private sector scopes bribery of administrators, executives, and employees of companies (Article 286 bis CC) and of sports entities, athletes, and referees to manipulate the outcome of highly significant sports competitions (Article 286 bis CC).

Movements and transformations of funds or assets can also lead to additional criminal liability through money laundering crime, if it is determined that they were intended to conceal or cover up their illicit origin or to assist the person involved in the offence in evading the legal consequences of their actions (Articles 301–304 CC).

The ordinary competent authority to investigate bribery and corruption in Spain is the investigation Court of the judicial region in which the crime is committed. There are 431 judicial regions with very different characteristics. Some of them have more than one investigation courts (i.e. there are 54 investigation courts in Madrid, and 33 in Barcelona). In those cases, the competent court results from the application of the previously fixed organic assignment rules of cases.

The central investigation courts, as part of the National High Court (Audiencia Nacional), are the competent authorities to investigate cases affecting to various judicial regions (national relevance/extension). There are 6 central investigation courts, resulting the competent to each case also from the application of the previously fixed organic assignment rules.

The Prosecutor Office is the constitutional designed institution in change of the defence of legality. Regarding the criminal investigation and prosecution activity, that constitutional position converts legally on its competence to:

• Develop preliminary investigations (not involving measures affecting fundamental rights).
• Impulse the initiation of judicial investigations and, initiated, the concrete investigation measures, both to be decided by the investigation courts.
• Formulate accusation, if trial phase is reached.

The Prosecutor Office is organised both based on territorial and specialization criteria, standing out in this case the Anticorruption Prosecutor Office.

Since 2021, the European Prosecutor Office (EPO) has Spanish European Delegated Prosecutors (seven), responsible for investigating, prosecuting and bringing to judgment criminal offences affecting the financial interests of the Union (Directive (EU) 2017/1371 and art. 4 Regulation (EU) 2017/1939).

Bribery is defined (i) referred to national public sector as any gift, favor, or retribution of any kind, offer or promise (articles 419, 420 and 422 CC) and (ii) referred to private sector and international public procurement, as unjustified benefit or advantage of any nature (articles 286 bis and 286 ter CC).

There is not a specific definition of corruption, but the term is used to systematically embrace bribery affecting private sector (article 286 bis CC) and foreign public bribery affecting public procurement (article 286 ter CC), assuming the terminology of the Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector and of the United Nations (UN) Convention against Corruption, adopted by the UN General Assembly the 31^st October 2003, by resolution 58/4.

The law distinguishes between bribery of a public official and bribery of private persons. Bribery affecting public sector can be related to, both, authorities and public servants, which are defined on articles 24.1 and 24.2 CC:

• Authority (24.1 CC): (i) who on his own or as a member of any corporation, court, or collegiate body, holds command or exercises his own jurisdiction; (ii) members of the House of representatives, the Senate, the Legislative Assemblies of the Autonomous Communities, and the European Parliament; (iii) Officials of the Public Prosecutor Office and the Prosecutors of the European Prosecutor Office.
• Public Servant (24.2 CC): Any person who, by immediate disposition of the Law, by election, or by appointment of competent authority, participates in the exercise of public functions.
• Article 423 CC extends bribery to private persons who punctually intervene on public functions as jurors, arbitrators (national or international), mediators, court experts, bankruptcy administrators or any individuals participating in the exercise of public functions.

There is no specific definition for foreign public official, but article 427 CC settles that the bribery crime defined with a reference to national authorities and public servants extends to those situations involving:

• Any person holding a legislative, administrative, or judicial position or office in a country of the European Union or any other foreign country, whether by appointment or election.
• Any person performing a public function for a country of the European Union or any other foreign country, including a public body or a state-owned enterprise, for the European Union or for another public international organization.
• Any official or agent of the European Union or a public international organization.
• Any person to whom a function of public service has been assigned and who is exercising it, involving the management, in Member States or third countries, of financial interests of the European Union or making decisions concerning those interests.

The authority, the public servant, the natural person who bribe and also corporate entities, if they obtained (or could have obtained) a benefit from the conduct of the bribed public officials.

Depends on the deviation from legality by the public official and the damages to public funds. In general terms, the civil consequences could be indemnity (if there are damages derived from the criminal action to be compensated), reparation (if physical situations can be restored/repaired to their original condition), restitution (if there are things to be returned) and nullity (of public resolutions).

• Improper influence over public officials and authorities (by other public officials or authorities – Article 428 of the Spanish Criminal Code, CC– or by a non-public person – Article 429 CC): prison from six months to two years and a fine.
• Bribery of public officials and authorities to engage in improper conducts (both the public official who promotes or receives it – Article 419 CC – and the private individual who promotes or pays it – Article 424 CC-, prison from three years to six years and a fine), to gratify proper conducts (articles 420 and 421 CC prison from two years to four years and a fine), due to his public position (article 422 prison from six months to one year).
• Misappropriation of public funds, including the misappropriation of public assets (Article 432 CC, prison from two years to six years), their use for private purposes (Article 432 bis CC, prison from six months to three years) or for a purpose different from the one intended (Article 433 CC, prison from one year to four years and a fine).
• Fraud in public procurement (Article 436 CC, prison from two years to six years).
• Actions not falling under the previous provisions, but involving unfair decisions in public functions incompatible with any admissible interpretation of the law (prison from one year to four years, when considering Judges resolutions -Article 446 CC-; no prison linked but disqualification for public responsibilities in any other case -Article 404 CC-).
• Bribery of foreign officials and authorities in economic operations -public procurement- with disruption of competition (Article 286 ter CC, prison from three years to six years).
• Bribery and corruption related to private sector (Article 286 bis CC), prison from six months to four years.

No, but once the judicial process begins, it is possible to achieve the termination through an agreement with the prosecutor’s office.  Apart from the requirements of a privileged regime to reduce penalties when considering crimes with a maximum penalty of less than three years imprisonment, plea agreement terms are flexible and widely used as a legal instrument.

According to law (Article 54.6 RDLaw 5/2015, Article 26.2.b.6 Law 19/2013), accepted hospitality expenses or gifts are those that do not exceed common, social, or courteous practices that may influence the performance of their duties.  The absence of complementary rules has led both private companies and public administrations to self-regulate their specific standards and policies.  In the private sector, these policies are complemented with procurement/supplier contracting procedures and controls, and with anti-money laundering systems (PEP).  In the public sector, these policies must be integrated with the provisions of public procurement laws (Law 9/2017) and the Statute of Public Servants (RDLaw 5/2015).

Usual self-regulation of public administrations considers acceptable gifts/attentions to be received by public servants that not exceed the amount of €50 (or €150 during a one-year period from the same individual or legal entity), protocolary gifts that can be exchanged or received in the exercise of official duties or institutional missions, maintenance and accommodation in the context of participation in a public event or an official visit, as well as participation or presence in lectures, conferences, seminars, or similar scientific, technical, or cultural events.  Private companies usually have similar limits for the acceptance and offering of gifts and hospitality accompanied of authorisation processes for both acceptance and offering when those limits could be exceeded.

There are not specific regulations restricting expenses for foreign public officials but the Supreme Court will have the opportunity, in the upcoming months, to clarify the extent of the permitted facilitation and commercial payments when addressing the appeal of the first bribery case involving foreign officials in economic transactions (Articles 445 CC – 286 ter CC).

Yes, political contributions are regulated:

• At the Organic Law 8/2007, of 4 July, on the Funding of Political Parties (Ley Orgánica 8/2007), stabilising the requirements and due diligence processes for both public and private funding.
• At Articles 304 bis and 304 ter CC, which criminalise certain extreme breaches of the Organic Law 8/2007.

As said, there are not specific regulations restricting expenses for foreign public officials, but the Supreme Court will have the opportunity, in the upcoming months, to clarify the extent of the permitted facilitation and commercial payments when addressing the appeal of the first bribery case involving foreign officials in economic transactions (Article 445 CC – 286 ter CC).

Complementary to general defences (inexistence of facts, non-concurrence of actus rea/mens rea), there is a specific legal exemption from liability for individuals who, upon acquiescing to bribery requests from public servants, subsequently report such incidents to the Police, Prosecutor, or Judge. This exemption applies if the report is made within two months from the occurrence of the bribery (Article 426 CC).

Yes, compliance programs can eliminate the responsibility of corporations if companies have developed all the internal control requirements settled by de CC (Article 31 bis CC). Also, they can mitigate it if they have not completely complied with the requirements but developed a significant effort to comply (Articles 31 bis 2 parr. 2, 31 bis 4 parr. 2 CC).

Not on a general perspective, but linked to the European Union Recovery and Resilience Facility, the National Anti-Fraud Coordination Service published in 2022 a guide to implement anti-fraud measures when public administrations or public companies lead public procurement processes using those European funds, including risk assessment (fraud, corruption, conflicts of interests or double funding), preventive measures (anti-fraud policy, code of ethics, internal control systems, anti-fraud unit, training and awareness), detection measures (red flags, data controls, Whistleblower Channel) and correction measures.

Yes. In March 2023, a new law regulating the protection of individuals reporting regulatory violations and combatting corruption (Law 2/2023) came into effect, transposing the Directive 2019/1937.  The law introduced the obligation, for both private and public entities, to implement systems to receive information and investigate regulatory violations constituting crimes or serious administrative offences (Article 2.1.b) with certain requirements and guarantees. Private and public entities must guarantee from now on protective measures for the whistleblower (prohibition of retaliation – Article 36 – supportive measures – Article 37).  Entities face fines (ranging from €100,000 to €1,000,000 – Article 65.1) in case the internal systems are not implemented in the prescribed manner.

No rewards are offered to whistle-blowers, but there are incentives for those who, having participated on the criminal conducts:

• Do not finish the execution and prevent or try to prevent seriously, firmly, and decisively, the consummation, which eliminate responsibility (Article 16.3 CC).

• Communicate to public authorities the crime, collaborating with the investigation:

• Before any judicial process or administrative investigation is activated:

• General prevision to reduce the responsibility (Article 21.4 CC).
• Total elimination of responsibility in:
  • Anti-competition conducts in public tenders and auctions (Article 262 CC) and affecting markets (Article 288 bis CC).
  • Private individual who accepted the bribery proposal (article 426 CC).
• After the activation:
  • General prevision to potentially reduce the responsibility (Article 21.7 CC).
  • Reduction of responsibility:
    • Misappropriation of public funds (Article 434 CC).
    • Public health (Article

• Repair damages:

• Before any judicial process or administrative investigation is activated:
  • General prevision to reduce the responsibility (Article 21.5 CC).
  • Total elimination of responsibility in:
    • Tax fraud (Article 305.4 CC).
    • Social security payments fraud (Article 307.3 CC).
    • Social security benefits fraud (Article 307 ter.3 CC).
    • Grant fraud (Article 308.6 CC).
• After the activation:
  • Total elimination of responsibility if it is returned, during the first 10 days of the process, the public asset destinated to private purposes (Article 432 bis p.2 CC).
  • General prevision to reduce the responsibility (Article 21.5 CC).
  • Reduction of responsibility:
    • Misappropriation of public funds (Article 434 CC).
    • Tax fraud (Article 305.6 CC).
    • Social security payments fraud (Article 307.5 CC).
    • Social security benefits fraud (Article 307 ter.6 CC).
    • Grant fraud (Article 308.8 CC).
    • Crimes related to urban development, against cultural heritage and natural resources (Article 340 CC)

Incentives are also designed for corporations who (Article 31 quarter CC):

• Proceeded, before knowing that the legal proceedings are directed against her, to confess to authorities.
• Collaborate with the investigation by providing evidence, at any time during the process, that were new and decisive to clarify criminal responsibilities.
• Proceeded at any time during the procedure and prior to trial, to repair or diminish the damage caused by the crime.
• Establish, before the trial, effective measures to prevent and uncover crimes that could be committed in the future under the cover of the legal entity.

The enforcement activity related to both public and private bribery and corruption conducts carried out by natural and/or legal persons during the last year has extended to:

• 128 Prosecutor investigations, 78 judicial investigations, 83 decisions before a judge and 35 sentences related to facts linked to misappropriations of public funds, including the misappropriation of public assets (Article 423 CC), their use for private purposes (Article 424 CC), or for a purpose different from the one intended (Article 433 CC).
• 28 Prosecutor investigations, 10 judicial investigations, 10 decisions before a judge and three sentences related to facts linked to improper influence over public officials and authorities (by other public officials or authorities – Article 428 of the Spanish Criminal Code, CC – or by a non-public person – Article 429 CC).
• Six Prosecutor investigations, three judicial investigations, six decisions before a judge and six sentences related to facts linked to fraud in public procurement (Article 436 CC).
• 26 Prosecutor investigations, 37 judicial investigations, 33 decisions before a judge and 22 sentences related to facts linked to bribery of public officials and authorities to engage in improper conduct (both the public official who promotes or receives it – Article 419 CC – and the private individual who promotes or pays it – Article 424 CC).
• 695 Prosecutor investigations, 129 judicial investigations, 124 decisions before a judge and 58 sentences related to facts linked to a breach of official duty (Article 404 CC).
• There has been no new prosecutor or judicial investigations and neither decision to judge facts linked to the crime of bribery of foreign officials and authorities in economic operations with disruption of competition (Article 286 ter CC), and there has only been one trial.
• Three Prosecutor investigations, two judicial investigations, one decision before a judge and one sentence related to facts linked to the crime of bribery of administrators, executives, and employees of companies (Article 286 bis CC).
• One Prosecutor investigation, one judicial investigation and one decision before a judge related to facts linked to the crime of bribery of sports entities, athletes, and referees to manipulate the outcome of highly significant sports competitions (Article 286 bis CC).
• 48 Prosecutor investigations, 246 judicial investigation, 465 decision before a judge and 155 sentences related to facts linked to the crime of money laundering (Articles 301–304).

The internal investigations of both private companies and public institutions when facing bribery, corruption and crime conduct, has suffered an important evolution during the last year.  In March 2023, a new law regulating the protection of individuals reporting regulatory violations and combatting corruption (Law 2/2023) came into effect, transposing the Directive 2019/1937.  The law introduced the obligation, for both private and public entities, to implement systems to receive information and investigate regulatory violations constituting crimes or serious administrative offences (Article 2.1.b) with certain requirements and guarantees.

Private and public entities must guarantee from now on (i) the existence of a secure channel to communicate orally or with text the information, (ii) the anonymity of the whistleblower (Article 7.3), (iii) the confidentiality of facts and procedural data (Article 39), (iv) protective measures for the affected person (presumption of innocence, the right to defence, access to the files, right to be heard), (v) protective measures for the whistleblower (prohibition of retaliation – Article 36 – supportive measures – Article 37), (vi) specific investigation measures (external reporting channels, acknowledgment of reception of to the informant within seven days, a maximum period of three months to provide a response, the possibility of maintaining communication with the informant, immediate referral to the Public Prosecutor – Article 9).

Yes; any decision of the executive power affecting individuals or corporations juridical sphere must have access to the judicial review. The revision of those actions and decisions:

• Can be initiated at the administrative field (Article 112 Law 39/2015).
• Can be directly challenged by appealing to the administrative courts (Law 29/1998).

No.

The absence of substantive or procedural European legislation pending transposition and the political instability in Spain make it difficult to predict significant changes after a legislature that has modified a large number of offences.

• United Nations Convention against Corruption, signed the 16^th September 2005 and ratified the 19^th June 2006.
• Council of Europe:
  • Criminal Law Convention on Corruption (ETS 173): signed the 10^th May 2005, ratified the 28^th April 2010 and entered into force the 1^st Agoust 2010.
  • Additional Protocol to the Criminal Law Convention on Corruption (ETS 191): signed the 27^th May 2009, ratified the 217^h January 2011 and entered into force the 1^st May 2011.
  • Civil Law Convention on Corruption (ETS 174): signed the 10^th May 2005, ratified the 16^th December 2009 and entered into force the 1^st April 2010.
• Organisation for Economic Co-operation and Development: Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, ratified the 14^th January 2000 and entered into force the 14^th March 2000.

The general lawyer legal privilege (professional secret as limit to testimonies and information/documentation/data requirements from third parties including judges) applies to lawyer-led investigations (not to other professionals -i.e. experts- that can intervene under the direction of the lawyer), and does not extend to in-house counsels as affected by the Akzo Nobel Court of Justice of the European Union doctrine.

Continuous messages are sent from the government referred to corruption and the fight against it. However, it is under consideration a potential amnesty of politicians linked to the Catalan independence movement.  This proposed amnesty would cover crimes such as misappropriation of public funds, disobedience or breach of official duty.  Independent Catalan political parties have demanded this amnesty as a condition for voting in favour of the re-election of the incumbent Prime Minister. Since the approval of the Spanish Constitution in 1978, no amnesty for criminal responsibilities has ever been adopted.  If an amnesty for criminal responsibilities is ultimately approved, it will have profound implications for the constitutional foundations of the Spanish criminal justice system.

According to the last report from Transparency International (2023), Spanish perception of corruption is fixed on a 6 up to 10 (being 0 highly corrupt perception and 10 very clean perception). Spain would be better positioned than Italy, Poland, Cyprus, Malta, Greece, Romania, Bulgaria and Hungary, and clearly under Denmark, Finland, Sweden, Netherlands, Germany, Luxembourg, Ireland, Estonia, Belgium, Austria, France, Lithuania or Portugal.

The number of existing companies in Spain the 1^st January 2022, according to the Central Business Directory, were 3,430,663, of which:

• Only 0.1% are large companies, that is, companies with more than 250 employees.
• 9% is made up of small and medium-sized enterprises (SMEs), of which:
  • 56% have no employees.
  • 43,2 % have employees, and nearly 96% of those have fewer than 10.

Large companies, specially those that have gone public, have a strong and mature approach to preventing bribery and corruption as a compliance risks, being solved through internal control structures and professional external assessment.

SMEs are, on a progressive way and paced to its resources, discovering the importance of the corporate compliance culture, including the risk of bribery and corruption, and the benefits of it.

Biggest challenges when investigating cases of bribery and corruption, are related with the actual financial circuits (digital assets, e-wallets, deep web, international movements of founds or compensation mechanisms) and the difficulties to reach the needed information and/or assets (impossibility or extremally long periods of time to obtain it).

These challenges are faced:

• With more intrusive (to intimacy, privacy of communications and data) investigation measures legally available (such as Spyware, i.e. Article 588 septies Criminal Procedural Law) and better software tools to execute them.
• With institutions as the EPO, that solves internally:
  • Cross-border investigations (Articles 31–32 R 2017/1939, 51 LO 9/2021): the European Delegated Prosecutors of all EU Countries assist each other directly executing investigation measures on their territory or indirectly obtaining that authorisation in accordance with the law of that Member State. Times to obtain the results of those measures have radically decreased.
  • Selection of jurisdiction (Articles 26 R 2017/1939): competent Permanent Chamber may decide, in a case concerning the jurisdiction of more than one Member State, to reallocate the case to a European Delegated Prosecutor in another Member State or to merge or split cases and, for each case choose the European Delegated Prosecutor handling it.
• With simplified mechanisms to achieve the recognition and execution of Spanish judge decision at any other EU Country, including: (i) arrest warrants (Article 34 L 23/2014); (ii) European investigation orders (Article 188 L 23/2014); (iii) supervision measures as an alternative to provisional detention (Article 109 L 23/2014); (iv) European protection orders (Article 131 L 23/2014); (v) freezing and confiscation orders (Article 143 L 23/2014); (vi) confiscation of Crime-Related Proceeds, Instrumentalities and Property (Article 157 L 23/2014); (vii) sentences (Article 61 L 23/2014); (viii) probation measures and alternative sanctions (Article 94 L 23/2014); and (ix) financial penalties (Article 173 L 23/2014).
• With cross-border investigations coordinated by Eurojust, supporting joint investigation teams (in 2022 Eurojust coordinated 265 joint investigation teams) and the execution of collaboration mechanisms as the European arrest warrants (1.262 in 2022) and European investigation orders (5.415 in 2022).

Mainly, their own potential criminal responsibility. It is difficult to conceive a behaviour of a company member (board, CEO, CFO, employee, provider) involved on a bribery or corruption case that directly or indirectly have not or could not generate benefits to the company (more incomes, less expense, new assets or less liabilities). It is important how the investigation is designed to identify, as fast as possible, failures or breaches of the compliance systems, to design and adopt the decisions to neutralize (on the best possible way) the own potential criminal responsibility.

It will be also a challenge, while dealing with previous, to respect the protective measures for the affected person: presumption of innocence, the right to defence, access to the files and right to be heard.

According to the European Commission, cross-border access to electronic evidence for criminal investigations is needed in 85% of investigations, with 65% of the total requests going to providers based in another jurisdiction. Those challenges are being faced:

• At a national level, with the general obligation of service providers to deliver prosecutors and judges the data when requested (Article 7 Organic Law 7/2021) and with the referred more intrusive (to intimacy, privacy of communications and data) investigation measures legally available.
• At a European level, to permit directly requests to a representative of a service provider in another Member State, without the authority of that other Member State being systematically involved in the process, it has been enacted the Regulation (EU) 2023/1543 (will enter into force the 18^th August 2026) and the Directive (EU) 2023/1544 (that has to be transposed before 18^th February 2026).
• At a global level, Spain has signed (12^th of may 2022) the Second Additional Protocol to the Convention on Cybercrime on enhanced co-operation and disclosure of electronic evidence (CETS No. 224) of the Council of Europe, and it is pending the approval of the United Nations Cybercrime Convention, and the EU-U.S. e-evidence agreement to facilitate access to electronic evidence in criminal investigations, that is being negotiated between the S. Department of Justice and the European Commission.

It is pending the creation of the new administrative authority (Independent Whistleblower Protection Authority) that will be responsible for ensuring compliance with the provisions of Law 2/2023 on the protection of whistleblowers, handling administrative proceedings against companies that fail to comply, and leading investigations based on the reported incidents.  Undoubtedly, its activities and decisions will shape the content of internal investigations that companies and administrations will need to deal with.

Companies must remain vigilant, in a preventive sense, to new rulings on corporate criminal liability of the Supreme Court, which is progressively providing greater detail on the elements of such criminal liability (last example Sentence 298/2024, 8.4.2024 articulates significant considerations regarding the burden of proof of the existence and content of internal control components).

On a reactive level, in addition to having adjusted their internal systems for reporting violations to the provisions of Law 2/2023, they will now need to strictly conduct their internal investigations in accordance with its requirements, dealing with the protective measures for the affected person such us his right to defence and access to the files, his right to be heard and presumption of innocence, and giving, at the same time, protective measures to the whistleblower.

Legal framework for preventing, investigating and prosecuting cases of bribery and corruption is quite complete, pending of global agreements to obtain digital evidence to align investigations agility with crime dynamics.

More than modifications of legal framework, it could probably more useful to improve the results in preventing, investigating and prosecuting cases of bribery and corruption to provide the judicial system with more resources and, specifically, to increase the number of judges (and, if possible, to promote their specialization).

In Spain there are 11 judges per 100.000 inhabitants, a low rate in comparison whit Croatia (40), Luxembourg (36), Bulgaria (31), Austria (28), Chez Republic (28), Germany (25) or Portugal (19) and with the average of all countries of the Council of Europe (22), doubling the Spanish rate.